Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-01-14

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in relation 10 the Police ami Fire Departments
ul the city Of Wheeling, and the appointment
duties AMI compensation OI the commissioners
thereof passed January &, lNNi:
This proceeding is taken under the pro
visions OF Chapter - of the Acts of 1855
authorizing the Circuit Court, upon a pc
tition such Us is filed in this case, TO super
sclr, revoke and aunul any ordinance of /:
city, town or village made contrary tt
law"
The point of inquiry, therefore, is
Whether the ordinance i'll question or any
Of the provisions thereof, are madccOntrary
to law.
1t is hardly necessary 10 say that til,
Court is not called upon To consider the
cxpcdicncy, wisdom or necessity of thi:
ordinance. These are questions exclusive
ly for the consideration of the Legislator,
or the Council Of the city; but the Court
under lhe terms of the Act of $50, is
required to consider and determine the val
idily of this ordinance, or, in other words
to enquire into and determine upon In,
power and authority of the Council of the
city of Wheeling to adopt this ordinance
The first section Of the ordinance provides
for the election by Council of four officers.
two of whom shall be OF opposite polite,
from the others, WHO shall constitute III
official Board, which shall hc called the
Police and Fire Commissioners of the city
Wheeling !" The succeeding sections pre-
scribe the powers and duties of this Board
and of certain other officers.
Il - a., ip-i.t,l la ia, r,ii it;,,.r. .nn
the city Council had no authority to create
such board To what source are we tC
look for the requisite authority in tn,
Coancil? UnqueStiontbly to the Acts o
thu Legislature
in lIobukrn vs.. Harrison, 80 New
jersey, -, the learned Chief Justice said
"rhe powers of 4 municipal corporation
arc derived from its charter II cannot
without EXPIRES authority from the charter
create an office, define lis duties and ap
point an incumbent or clothc him with
the powers Of Il municipal olliccr.'
judge Dillon lays down the rule or
this subject ~ follows, municipal
Corporations, Sec -, Sd. Edition.: ii
is general and mdiSputcd proposition oi
,ds that 4 municipal corporation posscS,c'
- =. can cNcuclsc the following p0MerS, ant
no others First, those granted in express
words; second, those necessary or fairly
implied in, or incident Ia, the powers cX.
pr,S,ly granted; those essential to the de
clarcJ. object and purposes of the corpora
tion-nOt simply convenient, but indis-
prnsible. -
The Supreme Court of the United States
cities this section OF Judge Dillon's work
applovingly in City of Ottawa '. Casey,
lOs [. s., 10.
Judge Cooley says Constitutional Limi-
tatious, page 23l, .lth edition.: The char
terror general law under which they Dmuni-
cpll cOrporatlonSj exercise their powers,
is their Constitution, in which they must
be able to show authority for the acts they
assume to perform. They have no inherent
jurisdiction to make laws, or adopt rcgu-
latjons of government, they are govern
ments Of enumerated powers, acting by a
delegated authority; 50 that while the
State Legislature may exercise such powers
of government within proper
designation of legislatures rs are
not expressly or implicitly
prohibited, the local authorities can cxcr-
clSe those only which are expressly or inn
rlcdly conferred, and subject TO such
regulations ur instructions rs are annexed
to the grant
Judge Cooley further says Up. 235-G) :
"And the general disposition Of the courts
of this country, has been to cOnfinc munici-
paltiCS within the limit which strict
construction Of the grants of powers in
their charters will assign to them; thus
applying substantially the same rule that
is applied to charters Of private incurpora-
tionS. The reasonable presumption is
that the State has granted in clear and un-
miStakablc terms all it has desired to
grant at all.
Judge Dillon says in the section before
referred TO Os9lD: "Any fair, reasonable
doubt concerning the existence of power
is resolved hy the Courts against the c0rpO-
ratiOns. OF every municipal corporation,
the charter or statute 10y which it is en-
acted is it's organic act. Neither the cor
poratiom nor its officers cnm do any act, or
make amy contract, or receive any liabili-
ty not authorized thereby. All acts be-
yond the scope Of the powers granted are
void
With these principles and rules Of con-
structon before us for guidance, let lis
look into the organic act'-thc charter
Of the City of Wheeling, consisting us it
does. of various Acts of the Legislature,
passed from time TO time, for the purpose
of ascertaining whether the Legislature has
4 Ia
create ''an Official Board which shall hc
called The Police aud Fire Commissioners
of the City of Wheeling. "
In the argument of the ease, various
provisions of the charter were cited and
relied upon upon by counsel for the
respondents, Us aiiurding 4 sufficient war
rant or authority in the Council tQ create
sucli ROard. The iitticth Section of the
act of March II, lS:iG, aS amended by
Chapter l9l of the Acts Of l~-2, is relied
on as authority for the creation by Council
of Board whose duties relate Ia the Fire
Department. 1t is rs follows:
'The Council shall have authority 10
ordain and enforce such regulations as
shall he necessary or proper Ia prevent ac-
cldent by fire within sud city, or To secure
the inhabitants thereof Us far Us practical
BILE from injury thereby; and especially to
provide for the establishments OrhanI4a-
ton, equipment, and government Of fire
department, or of fire companies, or both. ~
The only amendment made in Section
fifty of the Act of lS&6, by the Act of
lNS2, was to confer the authority to cStab-
lish u Fire Department rs well rs fire
companies, the Act of 1886 limiting the
power to the establishment Of fire COM
panieS. Under the enlarged power grant
ed 10y the Act of l1-2 Council plainly has
the right "to provide for the establish
ment, organization, equipment aud gov
ernment OF Il Fire Department The
Legislative power did not prescribe what
should constitute Fire Department, how
it should he organized. what officers it
should consist OF, how they should be des-
ignated, what should be their duties nor
how they were To be chosen.
The third section OF Chapter la5 of the